Senate Bill 93 would have allowed accident victims insured by Medi-Cal (and their lawyers) to recover higher settlements and judgments. But the rhetoric of both sides fails to explain why the resulting medical damages would have been fair — or too high, depending on one’s point of view. Although the governor vetoed the bill (again), the issue will not go away. To understand how the plaintiffs’ bar is trying to change bedrock principles of tort law, read my recent legal commentary in the San Francisco Daily Journal.
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Answers to the “Around the Courthouse” Jurisprudence Luncheon Quiz. (Find the Quiz by clicking on the “Around the Courthouse” Category on the right sidebar.)
At the Bar Association of San Francisco’s First Annual Jurisprudence Luncheon, the all-star panelists identified their favorite legal thinkers as follows:
- Hon. Joseph Grodin – Cardozo.
- Hon. Stephen Reinhardt – Dworkin.
- Hon. Alex Kozinksi – Harlan II.
The question was posed by panel moderator Jim Brosnahan of Morrison & Foerster.
Judge Alex Kozinski reprised his role as Oscar Madison opposite Judge Stephen Reinhardt (as Felix Unger) in “The Judicial Odd Couple,” an entertaining lunch-time performance at the Bar Association of San Francisco. Okay, that’s not entirely true. The two Ninth Circuit jurists did engage in a lively discussion, but the actual title of the event on October 25, 2007, was the First Annual Jurisprudence Luncheon: How Judges Decide Cases. Too bad, because I think my title would have been more fitting.
Like the original play by Neil Simon, the re-make had both drama and comedy. The dramatic segment was the Q & A between a lawyer in the audience and Judge Kozinski.
In the lead-up to this exchange, Judge Kozinski explained his textualist approach to Constitutional interpretation. The Constitutional prohibition on “cruel and unusual punishment,” he said, can be understood through interpreting these everyday words: cruel and unusual. “The death penalty is cruel, even if done nicely, but is it unusual?” Kozinski asked. No, he said, because 38 states have enacted it.
This led to the following question and answer:
Lawyer: Judge Kozinski, if 26 states enacted laws requiring castration for rapists, would it no longer be cruel and unusual punishment?
Kozinski: I don’t think you would need that many. Ten to 15 [states] would suffice.
Kozinski demonstrated that he is still not afraid to speak his mind. Judge Reinhardt is no shrinking violet, either. The liberal Reinhardt had a jab or two for his conservative colleague, but nothing as stunningly frank as the comments above. Kozinski clearly enjoyed tweaking his (presumably liberal) San Francisco audience.
Both judges complained about the politics of judicial confirmation. Judge Kozinski illustrated the problem today with a page from history: the 1979 Senate confirmation hearing for Judge Harry Pregerson, described by Kozinski as “one of the truly ultimately liberal judges the world has ever seen.”
At Pregerson’s confirmation hearing, then-Senator Alan Simpson (R-Wyo.) asked the nominee if the law required a decision “that offended your own conscience, what might you do in that situation.”
Pregerson responded: “I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience.”
This was a few years before the Reagan crusade to reshape the federal judiciary and even longer before the Judge Bork confirmation battle. Judicial selection hasn’t been the same since. Still, even in that day and age, Pregerson’s honesty stood out. Senator Patrick Leahy (D-Vt.) commented at the hearing: “I can’t help but think in your answer to Senator Simpson’s question, that I expect a great number of Federal judges feel as you do, but I suspect only a small percentage would be as candid as you were in your response.” The full Senate went on to confirm unanimously Pregerson’s nomination to the Ninth Circuit.
Said Kozinski: “Those were the days. No one will admit anything like this ever again.”
In his remarks, Reinhardt took exception to the title of the panel discussion. “I don’t know how to answer the question ‘How do judges make a decision.’ Much of what judges do is unknowing. In many cases you’d have to ask a psychiatrist why a judge reached a particular decision.”
I agree with Reinhardt that judges are limited in their ability to peel back the veneer and expose the inner workings of judicial decision-making. At this event, and others like it, judges invariably say that they try to apply consistent legal principles to the facts of the case without bias or prejudice, fear or favor. And every practitioner – recalling some personal experience – responds: “Yeah, right.”
Moderator Jim Brosnahan of Morrison & Foerster seemed to enjoy the pointed questions directed to the panel. “This is fun,” he said. “The lawyers get to ask the judges questions.” Kozinski was quick with a come back: “You will notice I didn’t do what the lawyers do with judges – evade the question.” Touche.
At the First Annual Jurisprudence Luncheon (Oct. 27, 2007 at the Bar Association of San Francisco), the all-star panelists revealed their favorite legal philosophers. Can you match the jurist to his fave legal thinker? Find the answers below at Legal Theorist Quiz Answers.
The panelists were (a) Former California Supreme Court Associate Justice Joseph R. Grodin; (b) Judge Stephen Reinhardt, U.S. Court of Appeals for the Ninth Circuit; and (c) Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit.
- Benjamin Cardozo (1870-1938). Judge of the New York Court of Appeal (1914-26); Chief Judge of the New York Court of Appeal (1927-32); Associate Justice of the U.S. Supreme Court (1932-1938) . Author of The Nature of the Judicial Process and the seminal case on proximate causation in tort cases, Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928).
- Ronald Dworkin (1931- ). Law professor and theorist who formerly taught at Yale University and Oxford University and is currently on the law faculty at University College London and New York York University. Author of Taking Rights Seriously (1977), A Matter of Principle (1985), and Law’s Empire (1986).
- John Marshall Harlan II (1899-1971). Associate Justice of the U.S. Supreme Court (1955-1971). Known as a member of the Warren Court’s conservative wing. He set a precedent, followed by every Supreme Court nominee since, by appearing before the U.S. Senate’s Judiciary Committee and answering questions.
October 19, 2007 by David Newdorf
Filed under Lit Tip Of The Week:™ Practical Advice For Litigators
Clients rely on their lawyers for many things beyond traditional legal advice and representation. On top of the skills needed to engage the court and opposing counsel, lawyers must understand — and more importantly, prepare their clients for — the emotional side of litigation. This part of the job is rarely covered in trial advocacy training, but the importance of this role was brought home to me at the end of a trial a couple of years ago. I thought I had delivered an effective argument that defused our opponent’s case. Instead of the praise I had hoped for, the client expressed her emotional upset at hearing opposing counsel’s relentless attack on her character and conduct. This was an entirely natural reaction, but not what I had expected.
Experience had taught me to anticipate and mentally prepare for the gist and force of the other side’s arguments. I had failed to see things from my client’s perspective and therefore had not helped her to prepare emotionally for this phase of trial. I haven’t made that mistake since.
The lawyer must take similar care at every stage of litigation. Clients must be prepped to handle many things that may seem obvious or be second-nature to the trial advocate. This list includes:
- The mental exhaustion of testifying at a lengthy deposition. It is more tiring than most people understand to maintain the mental focus needed during deposition. Explain the importance of hourly breaks, even when the witness does not feel it is necessary. The witness may not realize how much the depo took out of him or her until after the depo or later that evening.
- The often slow progress of a case during discovery and the pre-trial phase. If a case is headed for trial, it can take two years or longer. This is a marathon compared to the timeline for many business transactions that occur at a sprinter’s pace. As every marathoner will tell you, pacing and mental preparation are as important to success as physical conditioning.
- The emotional roller-coaster ride of trial, as fortunes appear to shift dramatically from day to day. As a defendant during trial, you need to tell the client that things will likely appear worse at the outset because plaintiff gets to put his case on first. For plaintiffs, the client needs to understand the reverse: defendant is going to have a chance to put on its best evidence after plaintiff rests.
The list goes on and on. The key is to put yourself in the client’s position so that you can assist him or her to be mentally and emotionally prepared for the task at hand.
As for the client who opened my eyes to this? Well, she was vindicated when the jury came back unanimously for her, which compensated for the emotional ups and downs of the trial.
October 12, 2007 by David Newdorf
Filed under Lit Tip Of The Week:™ Practical Advice For Litigators
Where does one start when preparing for trial? The best advice I ever received on this point came from Judge Charles A. Legge, for whom I was a law clerk in the federal courthouse in San Francisco. He suggested beginning at the end, that is, the closing argument.
The reason for this is compelling. In order to argue a point in the closing, the evidence on which the argument is based must be admitted during the trial. Thus, the logical sequence for trial preparation is to start with one’s anticipated closing argument and from there develop the list of trial themes and evidence (testimony and documents) you will need to introduce at trial. This list dictates the identity of the witnesses necessary to support your trial themes, provide your testimony and lay an evidentiary foundation for your documents.
The corollary, of course, is that if you don’t need the evidence to support your closing argument, it should not be introduced at trial. Unnecessary evidence lengthens the trial and, worse, risks confusing the jury. Extraneous evidence that you don’t mention in your closing could become the seed for a free-lance theory that germinates in the jury room and grows out of your control.
The plaintiffs’ bar is nothing if not relentless in pursuit of its agenda — mostly higher fees. After striking out in court decisions for the past few years, the plaintiffs’ bar has shifted its efforts to the political arena. Gov. Schwarzenegger vetoed one of the plaintiffs’ key measures — S.B. 93 — last Friday (10/5/2007).
The bill would have lifted the cap on medical damages under traditional tort law — but only if the plaintiff’s care was paid for by Medi-Cal. Under Hanif v. Housing Authority (1988) 200 Cal. App. 3d 635, plaintiffs can only recover the amount that Medi-Cal actually paid, which is much less than the “billed” amount thanks to agreed discounts from medical providers. In other words, Medi-Cal patients were treated the same as all other personal injury plaintiffs, who can only recover the actual cost of care. See Nishihama v. City and County of San Francisco (2001) 93 Cal. App. 4th 265.
Under the bill proposed by plaintiffs’ lawyers, juries would not have been permitted to learn the amount actually paid by Medi-Cal in determining the “reasaonble and necessary” amount of medical expenses. Plaintiffs, however, could use the hospital “bill,” which includes amounts written off by the provider that no one is required to pay.
The winner under this plan would have been plaintiffs and their lawyers. They could collect considerably higher medical damages and fees.
In nearly every case, not one penny of this increase would go to the doctors and hospitals who actually treat California’s poor. Aren’t they the ones squeezed by Medi-Cal’s low reimbursement rates? The governor may have thought so. In his veto message, he said he was concerned “that the proposed language would encourage litigation and fail to keep in check medical charges.”
S.B. 93 got to the governor’s desk this year through concerted poltical manuevering by the plaintiffs’ bar (or skulldoggery, according to Republican lawmakers who thought they had killed the measure during budget negotiations). Check out the political scoop on The Recorder’s website.